Title IX / College Discipline Practice - Warshaw Burstein LLP | Grimm v. Gloucester County School Board, Docket No. 19-1952, 2020 U.S. App. LEXIS 27234 (4th Cir. Aug. 26, 2020)
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  • Grimm v. Gloucester County School Board, Docket No. 19-1952, 2020 U.S. App. LEXIS 27234 (4th Cir. Aug. 26, 2020)
    Gavin Grimm spent his high school career fighting against Gloucester County School Board’s (the “Board”) refusal to allow him to use the boys’ restrooms at Gloucester County High School. Grimm was assigned female at birth, but his gender identity is male. Initially, when Grimm spoke with a school counselor and the high school principal about expressing his male identity at school, he was allowed to use the boys bathrooms. 

    However, once word got out, the Board faced a backlash from the community, who referred to Grimm in a derogatory manner and threatened to vote the Board out if they allowed Grimm to use the boys restroom. In response to this pressure, the Board instituted a policy that singled Grimm out by refusing to allow him to use the boys restroom, and threatened disciplinary consequences if he continued to do so. 

    Even after Grimm underwent gender-reassignment surgery and had his birth certificate amended to reflect the fact he was male, the Board refused to grant Grimm access to the boys restroom or amend his student records to reflect he was a male. Grimm filed this lawsuit in 2015 alleging violations of the Equal Protection Clause of the Fourteenth Amendment, and discrimination on the basis of sex in violation of Title IX. The case went to the U.S. Supreme Court to determine the level of deference due to the Department of Education’s guidance on the equal treatment of transgender students. However, the case was remanded after the DOE withdrew its guidance on transgender students. 

    Grimm subsequently graduated high school and amended the complaint, removing his request for prospective relief. The district court granted summary judgment in favor of Grimm. The Fourth Circuit Court of Appeals affirmed.

    At the start of Grimm’s sophomore year, he agreed to use the restroom in the nurse’s office. However, he “soon found it stigmatizing to use a separate restroom” and “began to feel anxiety and shame surrounding [his] travel to the nurse’s office.” He also realized that the location of the nurse’s office caused him to be late to class. Grimm was then allowed to use the boys restroom, which he did without incident for seven weeks. Only one student complained about Grimm’s use of the boys restroom, but there was vociferous opposition from adults in the school district, and even adults from neighboring school districts and other states. The privacy concerns relied upon to deny Grimm access to the boys bathroom were “based upon sheer conjecture and abstraction.” 

    The Court joined the Seventh and Eleventh Circuits in holding discrimination against transgender people constitutes sex-based discrimination for purposes of the Equal Protection Clause because such policies punish transgender persons for gender nonconformity, thereby relying on sex stereotypes. 

    The Court concluded that heightened scrutiny was the appropriate level of review because transgender people constitute at least a quasi-suspect class. Using heightened scrutiny, the Court affirmed summary judgment. The Court found that Grimm was similarly situated to cisgender boys and was excluded from using the boys restroom based on his sex-assigned-at-birth. Grimm used the boys restrooms for seven weeks without incident, the school installed privacy strips on stall doors and partitions at the urinals, and its own expert could not identify any additional privacy concerns that warranted barring Grimm from the boys bathroom. The Court found that the “bodily privacy of cisgender boys using the boys restrooms did not increase when Grimm was banned from those restrooms. Therefore, the Board’s policy was not substantially related to its purported goal.” 

    As for Grimm’s Title IX claims, the Court looked to the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, 140 S. Ct. 1731, 207 L. Ed.2d 218 (2020), to hold that a bathroom policy precluding Grimm from using the boys restrooms discriminated against him “on the basis of sex.” Bostock interpreted Title VII, but Title VII has traditionally been used to guide the evaluation of claims under Title IX. Because the Board was necessarily referring to Grimm’s sex to determine incongruence between sex and gender, sex was a but-for cause for the Board’s actions. “Therefore, the Board’s policy excluded Grimm from the boys restrooms ‘on the basis of sex.’” Similarly, the Board “based its decision not to update Grimm’s school records on his sex – specifically, his sex as listed on his original birth certificate, and as it presupposed him to be.”
    CATEGORY: Discrimination